Westminster continues to pay lip service to the reality of Scottish sovereignty, while treating Scotland as subject to England’s constitutional parliamentary sovereignty, and hence dismissing Scotland as a distinct sovereign entity with its own constitutional rights.
When the parliaments of England and Scotland ratified the Treaty of Union in 1706 and 1707,
a new state came into existence, the United Kingdom of Great Britain. The negotiations for
this single, unified state had been long and difficult and there was one, especially thorny
obstacle. The two nations had opposing and irreconcilable constitutions.
In England, (from the Bill of Rights in 1689), parliament and the crown were ‘sovereign’ over
the people. Parliament set the limits of law and of civil liberties and answered to no higher
authority. In contrast, the source of power in Scotland was - and remains - the nation itself; it
is the people who are sovereign over and who limit the power of government.
This is known as popular sovereignty and this uniquely Scottish constitution has existed for
at least seven hundred years as recorded:
⁃ in the Declaration of Arbroath of 1320,
⁃ in the interregnum governments of the Greater Council during the minority of four
monarchs
⁃ in the practice from 1592, codified in 1663, of salvo jure cujuslibet at the end of each
parliamentary session, (by which Scots could challenge the Crown or parliament over
legislation that prejudiced their ‘private’/civil rights)
⁃ in the Claim of Right Act of 1689,
⁃ and in the continuing provision in Scots law for the population to have any statute set
aside by the Court of Session.
The incompatibility of the two constitutions was never resolved. Instead, it was agreed that